Aboriginal Title and Private Property

“Aboriginal title” is a legal construct described as a right to land, encompassing a right to the exclusive use and occupation of lands held under this title. Private property, particularly fee simple title, is protected within registry systems as “indefeasible title.” Fee simple title signals the right of exclusive possession of a defined parcel of land, and encompasses a bundle of rights tied to this form of fundamental ownership in the common law system. Indefeasible title protects the fee simple titleholder form external challenge, even from the government.

The existence of these two forms of property interests, Aboriginal title and fee simple title, seems to demand some sort of “reconciliation.” It appears these two legal regimes must intersect “on the ground” in some manner, for it seems unavoidable that at some point in the future Aboriginal title will be established over an extent of land held as private property by third parties.

This chapter explores the development of Aboriginal title, and juxtaposes this legal concept with common understandings of fee simple title, to see if sense can be made of the idea that both could apply to one common parcel of land (or if the exclusion of one in the face of the other is the likely outcome.) The chapter examines possible guiding principles (minimization of social disruption and respect) and focuses on what might be responsible for development and implementation of such guiding principles into “law on the ground.” The author then considers how to think about, and potentially react to, the fact that this matter plays out within the power structure of the colonial society that ignored the existence of the claims of Indigenous societies for so long.